Pros and Cons of the Notwithstanding Clause
The Canadian Charter of Rights and Freedoms contains the notwithstanding clause. This clause has been a major talking point in Canadian politics. This is because the notwithstanding clause gives power to the provincial legislatures or the parliament to override certain portions of the rest of the Canadian Charter of Rights and Freedoms. Morton (2002) notes that this clause is also controversial in any instances such that there is a valid argument against its application when used and, on the other hand, its use seems unavoidable. This paper discusses the pros and cons of using this clause.
In the entrenchment of the freedoms and rights it is imperative to note that the Notwithstanding Clause is fair in the implementation of the rights and freedoms of the people. Though there is always a feeling that the decisions made by the members of the judiciary who are not elected may make reviews of decisions made by the politicians. This is, however, not the case. The elected members of the parliament have the final word on the vital issues concerning the freedoms and rights of the people.
In matters concerning the powers of the judiciary vs the powers of the legislature, when this charter is entrenched, the power is transferred from the parliamentary representatives to the judiciary. In many controversial cases such pornography, propaganda and abortion. This clause is vital in that the members of the judiciary can make decisions that the parliamentary members did not anticipate when enacting this charter, and this validated its inclusion on the charter. This is because this charter guarantees the rights that might be infringed in certain scenarios.
The other advantage of this clause is the rarity of its invocation. This override was imperative when it was included in the Quebec language. This clause has been used only with respect of the labor law in 2004. According to Ginsburg and Dixon (2011), the other major pro of this clause is that places the ultimate power to where it is supposed to be i.e. in the responsibility of the individuals who are supposed to handle the law- the elected representatives of people. These elected representatives are answerable to the people any in any case that they do not make decisions that the people require; they are voted out in the next election period. The decisions that these people make are mostly involving the rights of minorities.
The notwithstanding clause though is used to implement the entrenchment of the rights and freedoms of the people, the clause is not applied to all the charter of rights of the freedoms that are guaranteed. The other major disadvantage of this clause is that it places a huge responsibility in the hands of the judges. Malcolmson and Myers (2012) argue that the decisions that the judges make may be personally motivated. This means that the general decisions of the central government can be made by an individual as opposed to the decisions that should be made by the democratic government.
According to Howe and Russell (2001), the other disadvantage of the notwithstanding clause is that it provides a loophole whereby it allows Canada to develop a regime that favors certain values, as opposed to other values. The individuals implementing this clause only select the values that they think are important and may leave out other important aspects of the human rights. Another major con of this notwithstanding clause is that it is possible for both the legislature and the judiciary to be wrong in some of the decisions that they make that influence the entrenchment of human rights and freedoms.
The players who were behind the introduction and implementation of the notwithstanding clause are major the minority groups who felt that their rights and freedoms had been infringed and that they needed some protection from the government, and thus they lobbied for this law to be introduced. The mitigating factors that led to the introduction of that notwithstanding clause included the people feeling that the legislature had so much responsibility and power upon them and that they could make decisions that involved people at the same time. It was necessary to invoke a clause that ensured that power was shared between the legislature and the judiciary.
The notwithstanding clause has had a tremendous impact on the people of Canada. According to Ritter (2014), in the province of Saskatchewan, the clause was implemented to ensure that the people of that province returned to work and thus it protected the people from being harassed, and the lack of government services after the government workers had had many strikes. This clause, the notwithstanding clause, when implemented in other governments, is that it will create a situation that contradicts the provisions of the constitution. The Notwithstanding clause had been enacted in the Saskatchewan province in 1986 when they wanted people to go back to their works and in Alberta during a definition of marriage whereby the marriage had to be redefined.
This was implemented on a provincial basis. The factors that needed for the implementation of the notwithstanding clause include the infringement of the rights of minorities, the decision of legislators to have decisions that favor them and when equality rights have to be implemented. Individually, I am pro the notwithstanding clause as it ensures that power is evenly distributed and that the decisions can be made by individuals who think their decisions are humane and do not need the decision to be subjected to a democratic process.
Morton, F. L. (2002). Law, politics, and the judicial process in Canada. Calgary, Alta: Universi ty of Calgary Press.
Ginsburg, T., & Dixon, R. (2011). Comparative Constitutional Law. Cheltenham: Edward Elgar Pub.
Malcolmson, P., & Myers, R. M. (2012). The Canadian regime: An introduction to parliamentary government in Canada. North York, Ont: University of Toronto Press.
Howe, P., Russell, P. H., Institute de recherché en politiques publiques., & Guiding the Rule of Law Into the 21st Century. (2001). Judicial power and Canadian democracy. Montréal: McGill-Queen's University Press.
RITTER, SCOTT. "Beyond The Verdict: Why Courts Must Protect Jurors From The Public Before, During, And After High-Profile Cases." Indiana Law Journal 89.2 (2014): 911- 940. Academic Search Premier. Web. 29 Mar. 2014.